Mitt’s Robert Bork Problem

If you are judged by the company you keep, then Mitt Romney is an extremist for choosing Robert Bork as his top judicial adviser.

The presidential candidate and presumptive GOP nominee selected Bork as co-chair of his Justice Advisory Committee. A conservative legal scholar who once served as Nixon’s solicitor general, acting attorney general and a federal appellate judge, Bork was President Ronald Reagan’s pick for the Supreme Court in 1987. After a bitter, partisan and hotly contested confirmation process, Bork was rejected by the Senate in a 58-42 vote.

For civil rights groups, women’s rights groups, Senate Democrats and others, it all came down to the jurist’s hard-right views on the Constitution. Bork believes in originalism, a judicial philosophy that follows the original intent of the Founding Fathers, and does not view the Constitution as an organic, evolving document. In a nation that once rendered black people three-fifths of a person, and allowed only white male landowners to vote, original intent poses a problem for some.

“Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, school children could not be taught about evolution, writers and artists could be censored at the whim of the government, and the doors of the Federal courts would be shut on the fingers of millions of citizens,” said Sen. Ted Kennedy (D-Mass.) immediately following Bork’s nomination.

In a new report, People For the American Way argues that Romney has an extreme agenda for the Supreme Court, with his ties to Bork as proof of it. And few people even realize it.

“When Bork was nominated, Americans across the political spectrum rejected the dangerous political agenda that he would have brought to the bench — his disdain for modern civil rights legislation, his acceptance of poll taxes and literacy tests, his defense of contraception bans and criminal sodomy laws, his continued privileging of corporations over individuals,” said Michael Keegan, President of People For the American Way. “Since then, he has dug his heels even deeper into a view of the law that puts corporations first and individuals far behind.”

Bork opposed the Civil Rights Act of 1964 — which banned forms of discrimination such as whites-only lunch counters and motels — dismissing the law as state coercion and “a principle of unsurpassed ugliness.”

He also believes that people should be jailed for advocating civil disobedience, mocks the concept of “one person, one vote,” and has defended poll taxes and literacy tests in state elections. Further, Bork rejects the separation of church and state, and thinks the First Amendment only applies to explicitly political speech.

Bork favors the overturning of Roe v. Wade. On contraception, he has criticized the constitutional right of couples to use birth control. He also favors the criminalization of sexual activity such as homosexuality. And Bork believes the Equal Protection Clause of the Fourteenth Amendment should not apply to women because “[t]hey aren’t discriminated against anymore.”

But it gets worse. As a federal judge, Bork typically sided with corporate monopolies, and against workers and the government regulators who would protect them. In the 1984 case Oil, Chemical and Atomic Workers International Union v. American Cyanamid Co., Judge Bork ruled that it is “realistic and clearly lawful” for a manufacturing plant to force women to be sterilized or fire them due to a toxic workplace.

And yet, Mitt Romney is embracing Robert Bork. “I wish he were already on the Supreme Court,” Romney said the former judge, who is now a fellow at the neoconservative Hudson Institute. The presidential candidate promised to shape the Supreme Court in the mold of the court’s four most conservative justices. This is a signal that Romney would pull the high court ever more rightward.

The next president may nominate as many as two or three new justices to the Supreme Court.

A moderate-turned-ultra-conservative for the sake of political expediency, Romney needed the highly coveted Bork seal of approval to provide him street cred among the Republican Party base. Similarly, Romney sought and won the endorsement of pro-gun rocker Ted Nugent, who said he will be “dead or in jail” if Obama is re-elected next year. As a result of his statement, Nugent caught the attention of the Secret Service.

Although Romney has all but clinched his party’s nomination, he must court the far right — not to mention the unhinged, paranoid, gun-toting white dude vote — because he has not sealed the deal with the base. This is why he will give the commencement address at Liberty University, the evangelical Christian college founded by the late cultural warrior and televangelist Jerry Falwell, Sr. Liberty University is an anti-gay and anti-evolution institution that would outlaw pornography, according to Right Wing Watch.

Such a strategy of embracing the rigid ideological purism of Bork, Nugent and Liberty University is a prerequisite for making it through the GOP primary. But this could prove a disastrous path to the general election, particularly for a candidate like Romney, who has a 13-point deficit with women voters.

Meanwhile, an NBC/Wall Street Journal poll gives Obama a six-point lead against Romney, which is explained by the president’s support not only with blacks and Latinos and young people, but with women and independents. Voters think Obama is more likeable and compassionate than his apparent GOP rival. Anything is possible, but it is hard to imagine how Romney will clear a path to victory in November by associating with an ideologically extreme radical such as Robert Bork.

About David A. Love

BlackCommentator.com Executive Editor, David A. Love, JD, is a lawyer and journalist based in Philadelphia, and a contributor to the Progressive Media Project, McClatchy-Tribune News Service, In These Times and Philadelphia Independent Media Center. He contributed to the book, States of Confinement: Policing, Detention, and Prisons (St. Martin's Press, 2000). Love is a former Amnesty International UK spokesperson, organized the first national police brutality conference as a staff member with the Center for Constitutional Rights, and served as a law clerk to two Black federal judges. His blog is davidalove.com.

Comments

Interpreting the Constitution and it’s Amendments according to the original intent of those who wrote it and them is what protects us from tyranny. If it is to be interpreted in any other fashion, that leaves it’s interpretation up to whoever is in power at the time; and we will then have a rule of man instead of a rule of law.

Be careful what you ask for. If you want the Constitution to be interpreted by whoever is in power, what will happen when you are not in power?

“For civil rights groups, women’s rights groups, Senate Democrats and
others, it all came down to the jurist’s hard-right views on the
Constitution. Bork believes in originalism, a judicial philosophy that
follows the original intent of the Founding Fathers, and does not view
the Constitution as an organic, evolving document. In a nation that once
rendered black people three-fifths of a person, and allowed only white
male landowners to vote, original intent poses a problem for some.”

Interpreting the Constitution according to the original intent of the Founders is the only truly democratic way of interpreting it. Otherwise the final word on what it says is left up to 9 people who are the least answerable to the public of anyone in government. The Constitution does evolve, but according to the process that has led it to be amended 27 times – 5 of them in my lifetime. That process, unlike your alternative, is truly democratic in that it involves an actual vote of Congress and the State legislatures. And it’s that process, not an “organic” one, that changed the distribution of the franchise and ensured civil rights for all.

As far as the “3/5 of a person” nonsense, that process actually FAVORED civil rights. The Southern states wanted to count all slaves when apportioning representatives to the States – without, of course, allowing them to vote on that representation. Had the people opposing slavery not fought that down to 3/5 apportionment (not “3/5 of a person”, 3/5 apportionment), the South would have had far more representation in the House and would have been able to slant Federal legislation in anti-civil-rights modes any way they wanted to.

““Robert
Bork’s America is a land in which women would be forced into back-alley
abortions, blacks would sit at segregated lunch counters, rogue police
could break down citizens’ doors in midnight raids, school children
could not be taught about evolution, writers and artists could be
censored at the whim of the government, and the doors of the Federal
courts would be shut on the fingers of millions of citizens,” said Sen. Ted Kennedy (D-Mass.) immediately following Bork’s nomination.”

Ted Kennedy as as usual full of it – and I say that having been born and raised in Massachusetts about 20 miles from where he was. All that was a bunch of dishonest political lies. Robert Bork had no intention of rolling back any of the civil rights or First Amendment rights or access to judiciary rights anywhere in the Constitution. As far as the ability to get abortions goes, that would have been left in the hands of the States, where women outnumber men in the voting rolls. As far as teaching kids about evolution – where does that get touched on in the Constitution? That had nothing to do with Bork’s nomination.

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